2016 : Year in Review - Presentation for PIA seminar, February 2017 Mark Dwyer, Deputy President

2016 : Year in Review
Presentation for PIA seminar, February 2017
Mark Dwyer, Deputy President

Issues covered in presentation

 What’s been happening at VCAT
 Legislative update 2016
 Significant / Interesting VCAT ‘Red Dot’ decisions 2016
 Significant / Interesting Supreme Court decisions 2016
 Some challenges for VCAT in 2017

 Time for Questions at end (on any issue!)

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2016: Year in Review (PIA presentation), Mark Dwyer DP, February 2017

VCAT snapshot - 2016
 In FY 2016:
  – VCAT finalised 87,448 cases ... Only 2,695 cases (3%) were in the P&E List
  – 145,000 incoming emails, 210,000 incoming calls … (Your file isn’t the only one!)

 In the P&E List, in FY2016:
  – 229 cases in Major Cases List, and 2,390 ‘standard’ cases (excl. land valuation)
  – $20.34 billion development value, with increasing complexity
  – Most reviews: Glen Eira, followed by Bayside, Moreland, Yarra & Boroondara
  – By postcode: Bentleigh East, followed by Melbourne, Richmond & Preston

 Timeliness in P&E List as at 31 December 2016 YTD
  – Median finalisation 25 wks, 80th percentile 31 wks (37 cases finalised > 1 yr)
  – Partly reflects positive CC outcomes
  – But hearing delays increased in 2016 (although mostly now back in control)

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2016: Year in Review (PIA presentation), Mark Dwyer DP, February 2017

New VCAT website

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2016: Year in Review (PIA presentation), Mark Dwyer DP, February 2017

New VCAT fees (from 1 July 2016)
   Fees differentiate b/w ‘Corporate’ (inc. Govt/Councils), ‘Standard’ & ‘Concessional’
   P&E List application fees varied significantly (mostly up)
   Statement of grounds fee (inc. objector participating as party): $19.50 std
   Costs application fee (if made after final orders): $624.50 std
   Hearing fees from Day 1 (No ‘free’ first day anymore, payable by 4pm day prior)
   Accompanied site visit fee (same as hearing fee)
   Still no fee for CC (resource implications for full day/’second’ CC/standard case CC)

 Significantly higher hearing fees for complex cases – e.g.
  – ‘standard’ $2,351.70/day vs $341.50/day for a non-complex case, from Day 1
  – ‘corporate’ $3,359.50/day vs $487.90/day, from Day 1 (now same as MCL fee)
 VCAT Registrar determines whether matter a ‘complex case’ having regard to
  matters in Rule 6 VCAT Fees Regs >
 Many (most?) P&E proceedings could now be complex cases

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2016: Year in Review (PIA presentation), Mark Dwyer DP, February 2017

Impact of VCAT fee changes?
 No discernible change to application numbers, or mix (except for MCL increase)
 FY 2017 tracking at ≈5% increase over FY 2016, based on YTD December 2016

 $19.50 SOG fee not enough to dissuade legitimate objectors, but more joint SOG’s
 (Nor any discernible change from ‘Recognising Objectors’ legn after October 2015)
 More ‘savvy’ attempts to be ‘concessional’ for application/SOG/hearing fee etc.

 Day 1 hearing fees (and ‘complex’ fees) putting far more emphasis on CC
 Some fee angst for community objectors paying hearing fees (cf Somers)
 More pressure to have late sittings to avoid an extra day hearing fee, partic. s 82’s

 ‘Sleeper’ impact of the VCAT Fees Regs on 1 July 2016 was the removal of MCL
  threshold, inc. the $10m threshold for ‘dwelling’-related development
 Consequence was doubling in MCL applications, and a 8-10 wk delay in hearings

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2016: Year in Review (PIA presentation), Mark Dwyer DP, February 2017

Challenges for P&E List 2017
 Will come back to later (or in questions)

 Challenges include:
  – More sophisticated listing practices? (accurate listing info, avoiding
    backlogs, dealing with attrition, efficiency in hearings, more use of SCL,
    PDH-style hearings for ‘conditions appeals’, outlines of submissions etc.)
  – Member resources & succession planning
  – A more consistent approach to CC’s, partic. in standard cases
  – Continuing improvement and streamlining in registry and interlocutory
    processes
  – Moving VCAT’s IT into the 21st century? (online applications, e-filing, wifi,
    hearing room technology etc.)

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2016: Year in Review (PIA presentation), Mark Dwyer DP, February 2017

Legislative update 2016
 Nothing much to report !!!
 A relatively quiet year for legislation affecting planning generally, or VCAT

 Amendments to Victorian Civil and Administrative Tribunal Act 1998 primarily
  affected residential tenancies, and the new powers of attorney legislation.
 Amendments to Planning and Environment Act 1987 were directed to growth areas
  infrastructure contributions (GAIC) – clarifying the formula for CPI-adjusted
  thresholds and rates for the metropolitan planning levy and GAIC

 Aboriginal Heritage Act 2006 amended to allow for a CHMP to be amended, and to
  allow for the certification by the Secretary of a ‘preliminary aboriginal heritage test’
  (as a means of determining whether a CHMP is required). This ‘may’ assist in
  reducing disputes at VCAT in planning cases about whether a CHMP was required

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2016: Year in Review (PIA presentation), Mark Dwyer DP, February 2017

VCAT ‘Red Dot’ decisions 2106
 20 ‘Red Dot’ decisions in 2016

 NOTE: Apart from the rare ‘guideline’ decision (none in 2016), the designation of a
  Red Dot decision does not mean that the decision is universally endorsed, or that it
  will necessarily be followed by all other members, or for all time. So beware!
 Some Red Dots become superseded by changes to the law or planning scheme,
  changes in circumstances, or the useful commentary of others (inc. the courts!)

 Red Dot designation is based on perceived interest or significance, or sometimes
  its unusual nature or controversy. This may include the interpretation or application
  of law, the planning scheme or policy; dealing with practice and procedure; or
  highlighting systemic issues. Or just that it’s a matter of general public or
  professional interest
 Red Dot committee comprises 2 DPs and 5 senior members, with majority rule!
 There’s lots of useful VCAT decisions that are not Red Dots

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2016: Year in Review (PIA presentation), Mark Dwyer DP, February 2017

VCAT ‘Red Dots’ – general interest (1)
 Attempt in last couple of years to broaden base of Red Dot decisions.
 Some are reported just as a matter of general interest, but still have ‘pearls’ within

 Caydon Cremorne No.1 Dev’t P/L v Yarra CC (Red Dot) [2016] VCAT 423
  – Hewet/Keddie
  – General interest because related to Richmond Maltings site, home of Nylex sign
  – Good expose of reasoning on heritage, height, car parking, housing diversity etc.
  – Particular interest in member commentary on ‘piecemeal’ applications.
  – Here, VCAT dealing with only 1 of 3 stages. Council wanted it remitted to deal
    with all three. VCAT applied factors in Rowcliffe v Stonnington CC [2005]:
    • risk to orderly planning in this application by excluding a portion of land?
    • risk to future orderly planning (or constraints in discretion) for excluded portion?
    • any inherent fairness to public in splitting proposal?
  – VCAT found application before it sufficiently discrete and self-contained

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2016: Year in Review (PIA presentation), Mark Dwyer DP, February 2017

VCAT ‘Red Dots’ – general interest (2)
 Calder Park Raceway P/L v Hume CC (Red Dot) [2016] VCAT 551
  – Dwyer DP/Jacono (a ‘first’ Red Dot for a valuation case)
  – General interest because related to Calder Park Thunderdome site, ‘highest and
    best’ use (from planning perspective, inc. GWZ land), and complex valuation
  – Particular interest (even to planners!) in commentary on the need for a
    ‘transparent path of reasoning’ in Council or expert opinions, not just assertions.

 Secretary DHHS & Ors v Melbourne CC (Red Dot) [2016] VCAT 2051
  – Gibson DP/Liston (ss 87/89, 12 day hearing)
  – General interest because related to helicopter flight paths to hospitals. Decision to
    amend permit to reduce height of approved apartment building
  – Discussion about notice obligations. Here, failure to give notice to Melb. Health.
  – Interesting discussion about ‘material mistake in relation to the grant of the permit’
    relied upon to found jurisdiction. ‘Mistake’ made by Council officer in not
    considering flight path, although permit was ‘granted’ by VCAT (albeit by consent)

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2016: Year in Review (PIA presentation), Mark Dwyer DP, February 2017

VCAT ‘Red Dots’ – VCAT practice (1)
 AGL Loy Yang P/L v Department Head (Red Dot) [2016] VCAT 1249
  – Dwyer DP (a Red Dot about a consent order! Unusual facts in a review of
    conditions on a Work Plan variation, with non-party Council involvement).
  – VCAT exercising power under s 93 VCAT Act to give effect to a settlement
    reached by the parties. Even if VCAT must still be satisfied that the agreement is
    the ‘correct or preferable decision’, VCAT does not need to investigate or be
    satisfied about all of the merits issues that may have required determination had
    the matter proceeded to a full hearing. Here, consent order made.
  – If the settlement and proposed consent orders are within jurisdiction, reflect an
    agreement reached by the parties to resolve their own dispute without duress,
    and where the outcome is within the broad range of acceptable outcomes on the
    material before VCAT, VCAT should not lightly interfere.
  – Power under s 93 is still discretionary. There may occasionally be circumstances
    where VCAT declines to give effect to a settlement if not within the broad range of
    acceptable outcomes having regard to the decision and the regulatory regime.

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2016: Year in Review (PIA presentation), Mark Dwyer DP, February 2017

VCAT ‘Red Dots’ – VCAT practice (2)
 478 St Kilda Road P/L v Port Phillip CC (Red Dot) [2016] VCAT 445
  – Baird (s 87A, seeking to amend permit to ‘add back’ an 18 th storey and 16 units)
  – Original permit resulted from a mediated consent order at VCAT
  – ‘King David School’ principle discussed – caution required where permit applicant
    seeking to win back something foregone at mediation
  – But principle is not an ‘absolute’. Still require proper application of s 87A
    discretion, consideration of planning merits, context, changed circumstances etc.
  – Here, VCAT satisfied it was appropriate to amend permit

 Tresise v Stonnington CC (Red Dot) [2016] VCAT 225
  – Deidun (Dwyer DP on legal issue)
  – Section 51(5) VCAT Act : If applicant for review doesn’t appear ‘at the hearing of
    the proceeding for review of the decision’, VCAT ‘must’ confirm the decision.
  – CC a hearing for some purposes but, on analysis, not for the purpose of s 51(5)

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2016: Year in Review (PIA presentation), Mark Dwyer DP, February 2017

VCAT ‘Red Dots’ – industry practice
 Hotel Windsor Holdings v Min. Planning (Red Dot) [2016] VCAT 351
  – Dwyer DP (application for extension of time to complete development)
  – Standard 2x2 permit for commencement/completion, limited prior extensions, and
    inconsistent heritage permit timelines. No real window of opportunity (or sufficient
    certainty of time) to allow for project financing, contract tenders, and construction.
  – RA’s need to understand commercial realities of major development timeframes,
    and not blindly apply standard 2x2 permit timelines to major developments

 Seers v Macedon Ranges SC (Red Dot) [2016] VCAT 1198
  – Gibson DP (existing use rights vs reliance on permit)
  – E/U rights on ‘balance of probabilities’ (not beyond reasonable doubt)
  – E/U rights need a relevant trigger under cl 63.01. If use lawfully commenced and
    has continued under a permit, E/U rights don’t arise. Use right established solely
    by permit. 15 year rule doesn’t apply here. (Not inconsistent with ‘Anderson’)

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2016: Year in Review (PIA presentation), Mark Dwyer DP, February 2017

VCAT ‘Red Dots’ – emerging issue?
 e.g. Current issue on urban fringe with extensive disposal of soil on land as a
  means of avoiding high cost of disposal to landfill.

 Calleja Properties P/L v Hume CC (Red Dot) [2016] VCAT 253 (Potts/Chuck)
  – 320,000 m3 of soil placed on GWZ land. Permit sought only for development
    (earthworks). VCAT agreed with Council that nature of proposal also comprised a
    ‘use’ for the disposal of clean fill (and refused both on planning/amenity grounds)
 Yarra Ranges SC v Bibiano SC (Red Dot) [2016] VCAT 1881 (Dwyer DP)
  – Council 'test case'. 1400 truckloads of soil placed on 6.8 ha site
  – Decision in Calleja endorsed. However, here, ‘use’ was ancillary to dominant
    purpose as dwelling/hobby farm, and did not require a separate use permit. Soil
    was being deposited to deal with long-standing drainage/erosion/access issues
    on the land itself, rather than the disposal of soil for the benefit of a third party.
  – Concluding comments noted underlying issue, and recommended policy review

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2016: Year in Review (PIA presentation), Mark Dwyer DP, February 2017

VCAT ‘Red Dots’ 2016 – the ‘others’ (1)
 High Quality Quarry v EPA (Red Dot) [2016] VCAT 1445
    – VCAT jurisdiction under s 36D Environment Protection Act 1970; purposive and
      expansive approach; ‘review’ of antecedent jurisdictional facts relied upon by EPA
   Roads Corporation v Latrobe SC (Red Dot) [2016] VCAT 1167
    – Interpretation of sign, incorporating TV screen. Scheme definitions not keeping up
      with industry/technology
   Living Streets Designs v Strathbogie SC (Red Dot) [2016] VCAT 1073
    – Characterisation of ‘Racing dog training’ vs ‘Racing dog keeping’
   Willis v Yarra Ranges SC (Red Dot) [2016] VCAT 407
    – Yet another 'minimum lot size' and 'small lot' interpretation in GWZ.
   MAMF Functions P/L v Buloke SC (Red Dot) [2016] VCAT 289
    – Characterisation of use – music and arts festival a 'place of assembly', and
      needed a CHMP
   Some of these decisions recommended planning scheme clarification

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2016: Year in Review (PIA presentation), Mark Dwyer DP, February 2017

Supreme Court decisions 2016 (2)
 Couttie v Bayside CC [2016] VSC 772 – Emerton J. (Appeal upheld)
  – Three dwelling proposal under transitional provisions in NRZ. (HO also applied).
  – Some grounds of appeal dismissed, but Court found two vitiating errors
    • Transitional provisions excluded cl 32.09-3 (new limit on number of dwellings),
      but the balance of the new NRZ applied. Although VCAT had noted shift in
      emphasis in the NRZ from urban consolidation to neighbourhood character, it
      had failed to expressly deal with the purposes of the NRZ, in particular the 3 rd
      purpose to ‘limit opportunities for increased residential development’
    • Although VCAT dealt with the high-pitched roof form and dormer windows under
      HO and Council’s heritage policy, and dealt with the Council’s neighbourhood
      character policy in cl 22.06 generally, it did not expressly deal with the roof form
      and windows under the neighbourhood character policy, which sought to avoid
      such a design response
  – Decision has implications for VCAT decision-making and extent of written
    reasons. This could have consequential implications for RA/party submissions

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2016: Year in Review (PIA presentation), Mark Dwyer DP, February 2017

Supreme Court decisions 2016 (3)
 Zumpano v Banyule CC [2016] VSC 420 - Garde J. (Leave to Appeal refused)
  – ‘Repeat appeal’ at VCAT (4th attempt to convert existing dwelling into two)
  – Court confirmed usual principles about ‘classic repeat appeals’ (forum shopping)
    and ‘correcting repeat appeals’, albeit noting they were imprecise and not
    statutory terms. VCAT still obliged to consider application on its merits but, in
    doing so, can give weight to earlier decision. Here, it had correctly done so

 Woldeyes v Brimbank CC [2016] VSC 639 - Emerton J. (Appeal dismissed)
  – VCAT made interim order allowing modified plans after hearing, but then refused
    permit ‘on the papers’. Applicant claimed failure to accord procedural fairness,
    and expectation that modified plans would facilitate permit given comments by
    member at hearing about particular changes to address planning concerns
  – Court found no breach of procedural fairness. VCAT had made provision for
    parties to request further hearing, and had no duty to inform parties of its opinion
    about the modified application. Also, other issues in refusal (swept path analysis)

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2016: Year in Review (PIA presentation), Mark Dwyer DP, February 2017

Supreme Court decisions 2016 (4)
 Stanley Rural Com v Stanley Pastoral [2016] VSC 764 – Mc Donald J.
  – Rights conferred upon holder of a ‘take and use’ water licence under Water Act
    not limited by any provision of the P&E Act or planning scheme
  – Effect was that Stanley Pastoral did not require a planning permit to extract water
    the subject of the pre-existing licence. Leave to appeal refused
  – Supported VCAT outcome, but for reason not argued at VCAT. (Water Act s 8(6))

 Spire Group v Monash CC [2016] VSC 801 – Emerton J (Appeal upheld)
  – DPO required plan to include a landscape plan that incorporates significant
    vegetation, including trees rated moderate/high in a 2013 Tree Logic assessment.
  – VCAT said this meant all the rated trees had to be shown and retained
  – Court disagreed. Tree Logic report not an incorporated document in scheme, and
    no VPO. On a purposive approach, landscape plan intended to provide
    information about retained vegetation, but did not drive the content of the
    development plan as a whole, nor mandate that all trees were to be retained

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2016: Year in Review (PIA presentation), Mark Dwyer DP, February 2017

Supreme Court decisions 2016 (5)
 Moira SC v Sidebottom [2016] VSC 546 - Zammit J (Proceeding adjourned)
  – Council contempt proceedings for non-compliance with VCAT enforcement order.
  – Court not satisfied beyond reasonable doubt about contempt, or that Sidebottom
    could comply with orders. Some evidence equivocal or uncontradicted
  – Decision demonstrates difficulties with Council planning enforcement
 Kitanovski v Melton CC [2016] VSC 474 – Keogh J.
  – Plaintiff had been found guilty of unlawful disposal of soil. On appeal, Court
    upheld the ‘usual’ view of innominate uses in Section 2 (i.e. anything not in S1 or
    S3 required a permit), and found no ‘impermissible arbitrary interference’ with
    plaintiff’s common law rights as a property owner arose from this restriction
 Secretary Dept DEJTR v MG Pastoral [2016] VSC 187 – Emerton J.
  – Unregistered s 173 agreement in that case did not create any ‘interest’ in land.
 Anderson v Stonnington CC [2016] VSC 374 – Mc Millan J.
  – Laneway in that case a ‘public highway’ at common law and a ‘road’ under
    legislation. Plaintiff unable to claim private ownership or preventing public access

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2016: Year in Review (PIA presentation), Mark Dwyer DP, February 2017

Challenges for P&E List 2017
 As indicated, challenges for VCAT in 2017 and beyond include:

  – More sophisticated listing practices? (accurate listing info, avoiding
    backlogs, dealing with attrition, efficiency in hearings, more use of SCL,
    PDH-style hearings for ‘conditions appeals’, outlines of submissions etc.)
  – Member resources & succession planning
  – A more consistent approach to CC’s, partic. in standard cases
  – Continuing improvement and streamlining in registry and interlocutory
    processes
  – Moving VCAT IT into the 21st century (online applications, e-filing, wifi,
    hearing room technology etc.)

                                    QUESTIONS ?
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2016: Year in Review (PIA presentation), Mark Dwyer DP, February 2017